Real Estate & Property Law

Battling Condo Smokers and Noise

Ever had trouble with a neighbor? Ever had trouble with a tenant that causes problems. Read on...

Question from a reader:

"I have a single condo and rent it to a tenant that is battling with the owner above her. She smokes on her balcony (allowed by the HOA) and the smoke and her radio bother the owner above. The owner above her makes lots of noise early in the day to keep our tenent awake. They are battling and threatening to go to court. What rights do I have here. Am I responsible to pay for legal fees if the owner above gets an attorney? When can i evict my tenant?"

Lots of issues, lots of questions.

Each battling party has some potential liability to the other for nuisance - that is the likely cause of action if it goes to the courts. However, if a judge finds that both parties are bothering each other, then he or she may "throw the matter out of court'. How do I know this could happen? I have seen it - in an association I represented quite a few years ago, the owners of two units were battling back and forth. The barbecue smoke of one unit bothered the owner of the other one upstairs, so she stomped around her unit and took late night showers (claiming that she had to wash off the barbecue smoke) and that bothered the below owners. They started flushing their toilet and turned up the TV late at night. They all went to court and brought in the association - hoping to get their legal fees paid. I filed a motion for summary judgment on behalf of the association and got it out of court, explaining the facts which neither other party could deny. The two parties kept fighting until finally the judge in the case declared a "nonsuit" meaning the case was thrown out of court. There was a small article in the local news that was headlined: "Judge Douses Barbecue Suit."

As for the owner with the problem tenant, yes, he or she will likely be dragged into any court proceeding if there is one. If it's in small claims, he or she should definitely appear and provide the court with any warnings he or she has given to the tenant about unreasonable nuisances (loud music, heavy smoking, etc.) Yes, even if the HOA rules allow smoking on balconies, that does not preclude any person claiming nuisance. If the smoker is courteous, and does not smoke all day long, preventing the neighbors from using their balcony without having to endure cigarette smoke, then the judge might consider lenience. But smoking and turning up the noise? Not a good combination.

As for eviction, grounds for eviction (cause) depends on what the lease says, and there are specific procedural rules in California and it is best to consult with a landlord-tenant attorney. In most if not all counties, there is a Bar Association that has an attorney's reference panel where one can get a cheap consultation with an attorney of a particular specialty like landlord-tenant law.

Good luck with these problems. They are difficult to solve. You could visit the webstore on the condoguru website and get a guide to difficult neighbor-to-neighbor problems (Enforcement Advanced) that would explain a lot about handling these kinds of matters.

Full post as published by California Condo & HOA Law on December 27, 2010 (boomark / email).